Brian A. Smale v. Pamela Ann Williams ( 2019 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-18-00055-CV
BRIAN A. SMALE, Appellant
V.
PAMELA ANN WILLIAMS, Appellee
On Appeal from the 5th District Court
Cass County, Texas
Trial Court No. 18C156
Before Morriss, C.J., Burgess and Stevens, JJ.
ORDER
The appellant, Brian A. Smale, appealed from the trial court’s dismissal of his lawsuit after
finding that the same claims had been raised and settled in a prior lawsuit. On February 8, 2019,
this Court issued its opinion affirming the trial court’s judgment.
On February 19, 2019, Smale filed a motion in this Court asking that each of the three
justices of this Court recuse from deciding Smale’s subsequently filed motion for rehearing. Smale
seeks recusal because of the Court’s “repeated orders against relief requested by Smale in multiple
motions.” Further, Smale contends that, because this Court’s opinion failed to include either a
concurrence or a dissent, the Court’s “impartiality might reasonably be questioned.”
Rule 16.3 of the Texas Rules of Appellate procedure states, in pertinent part:
(a) Motion. A party may file a motion to recuse a justice or judge before
whom the case is pending. The motion must be filed promptly after the party has
reason to believe that the justice or judge should not participate in deciding the case.
(b) Decision. Before any further proceeding in the case, the challenged
justice or judge must either remove himself or herself from all participation in the
case or certify the matter to the entire court, which will decide the motion by a
majority of the remaining judges sitting en banc. The challenged justice or judge
must not sit with the remainder of the court to consider the motion as to him or her.
TEX. R. APP. P. 16.3.
Pursuant to the procedure set forth in Rule 16.3(b), upon the filing of the recusal motion
and prior to any further proceedings in this appeal, each of the challenged justices of this Court
considered the motion in chambers. Chief Justices Josh R. Morriss, III, and Justices Ralph K.
Burgess and Scott E. Stevens each found no reason to recuse themselves and certified the matter
to the remaining members of the Court en banc. See id.; McCullough v. Kitzman, 50 S.W.3d 87,
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88 (Tex. App.—Waco 2001, pet. denied). This Court then followed the accepted procedure set
out in Rule 16.3(b). See TEX. R. APP. P. 16.3(b); Manges v. Guerra, 673 S.W.2d 180, 185 (Tex.
1984); McCullough, 50 S.W.3d at 88. Each recusal was considered on a case-by-case, fact-
intensive basis. See McCullough, 50 S.W.3d at 89; Williams v. Viswanathan, 65 S.W.3d 685, 688
(Tex. App.—Amarillo 2001, order).
Having carefully examined the pleadings and record as to the allegations pertaining to each
challenged justice and finding the allegations to be unsubstantiated, we issue the following orders:
ORDER DENYING MOTION AS TO CHIEF JUSTICE JOSH R. MORRISS, III
This Court, Chief Justice Josh R. Morriss, III, not participating, finds no reason to recuse
Chief Justice Morriss. See TEX. R. APP. P. 16.2; TEX. R. CIV. P. 18b(2). Accordingly, Smale’s
motion to recuse Chief Justice Morriss is denied.
IT IS SO ORDERED.
BY THE COURT
MORRISS, C.J., not participaing
Date: February 27, 2019
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ORDER DENYING MOTION AS TO JUSTICE RALPH K. BURGESS
This Court, Justice Ralph K. Burgess not participating, finds no reason to recuse Justice
Burgess. See TEX. R. APP. P. 16.2; TEX. R. CIV. P. 18b(2). Accordingly, Smale’s motion to recuse
Justice Burgess is denied.
IT IS SO ORDERED.
BY THE COURT
BURGESS, J., not participating
Date: February 27, 2019
ORDER DENYING MOTION AS TO JUSTICE SCOTT E. STEVENS
This Court, Justice Scott E. Stevens not participating, finds no reason to recuse Justice
Stevens. See TEX. R. APP. P. 16.2; TEX. R. CIV. P. 18b(2). Accordingly, Smale’s motion to recuse
Justice Stevens is denied.
IT IS SO ORDERED.
BY THE COURT
STEVENS, J., not participating
Date: February 27, 2019
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